WPIC 126.02 Criminal Mischief—Felony—Elements

Use the bracketed word “felony” only if the jury is also being instructed on the gross misdemeanor form of criminal mischief (WPIC 126.03 (Criminal Mischief—Gross Misdemeanor—Elements)).

With this instruction use WPIC 10.02 (Knowledge—Knowingly—Definition) and WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive) (or the related instruction, WPIC 2.06.01 (Deadly Weapon—Definition as Element—Weapons Other than Firearms or Explosives)).

If the prosecutor is seeking an enhanced penalty under RCW 9.94A.825 and 9.94A.510, that matter is separate and in addition to the felony element of being armed with a deadly weapon. In that event, use WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancements), WPIC 190.01 (Special Verdict Form—Deadly Weapon) (or the related instruction WPIC 190.02 (Special Verdict Form—Firearm)), and WPIC 2.07 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—General) (or the related instructions WPIC 2.07.01 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—Knife) or WPIC 2.07.02 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—Firearm)) with this instruction.

For a discussion of the phrase “any of these acts” in element (5), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.84.010(2)(b). In 2013, the Legislature changed the name of the crime from riot to criminal mischief. Laws of 2013, Chapter 20, § 1 (effective January 1, 2014).

If the defendant was armed with a deadly weapon, criminal mischief is a class C felony; otherwise it is a gross misdemeanor. Being so armed is an element of the felony offense. The special verdict for an enhanced penalty must be handled separately. See the Comment to WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancements). Under this statute, the defendant must be personally armed. State v. Montejano, 147 Wn.App. 696, 703–04, 196 P.3d 1083 (2008); see also State v. Hayes, 164 Wn.App. 459, 262 P.3d 538 (2011).

The statute uses the word “unlawfully.” What is unlawful will depend on the facts and circumstances of each case.

The former statute defining riot, RCW 9.27.040, was held constitutional against the charge it was vague, unclear, uncertain, confusing, ambiguous and violative of the right to peaceful assembly under the first amendment to the U.S. Constitution. State v. Orange, 78 Wn.2d 571, 478 P.2d 220 (1970).

Interpreting the prior statute which contained “acting with,” the court held that the crime is predicated on group conduct and the specific complicity element is set forth in statute. State v. Montejano, 147 Wn.App. at 701–03. The defendant is “legally accountable for the conduct of another person by the law defining the crime.” The general accomplice definition is inapplicable. State v. Montejano, 147 Wn.App. at 703.